HERITAGE FOUNDATION v. DEPARTMENT OF JUSTICE (2024)

ORDER

This matter is before the Court on the government's Motion for Judgment on the Pleadings. ECF No. 8 (“Mot.”). Plaintiffs filed this FOIA suit to compel the production of records concerning the FBI's relationship with Meta Platforms, Inc. See ECF No. 1 (“Compl.”) ¶¶ 1–2, 12. The government moves for judgment on the pleadings on the ground that Plaintiffs failed to “exhaust their administrative remedies” before filing suit. Mot. at 1.

“The doctrine of administrative exhaustion applies to FOIA and limits the availability of judicial review.” EPIC v. IRS, 910 F.3d 1232, 1238 (D.C. Cir. 2018). “[F]ailure to exhaust precludes judicial review if the purposes of exhaustion and the particular administrative scheme support such a bar.” Id. at 1238 (quotation omitted). Accordingly, “[a]s a general matter, a FOIA requester must exhaust administrative appeal remedies before seeking judicial redress.” Machado Amadis v. U.S. Dep't of State, 971 F.3d 364, 372 (D.C. Cir. 2020) (quotation omitted). Although that normally requires the requester to “complete the statutory administrative appeal process,” EPIC, 910 F.3d at 1238 (quotation omitted and emphasis added), a requester is “deemed to have exhausted his administrative remedies” if the agency fails to “make a determination with respect to any appeal” within the “applicable time limit”—here, “twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal,” 5 U.S.C. § 552(a)(6)(A)(ii), (a)(6)(C)(i).

In this matter, after the FBI's initial denial of Plaintiffs’ request for failure to reasonably describe the records requested, Plaintiffs filed an administrative appeal of that decision on January 7, 2023. Compl. ¶ 14; see also ECF No. 1-6 (denial letter). When the agency did not immediately resolve their appeal, Plaintiffs filed this suit on February 6, 2023—twenty business days later. See Compl. ¶ 14.

Plaintiffs appear to acknowledge that they did not see the administrative appeals process through to “complet[ion]” and, therefore, that they did not exhaust their administrative remedies. EPIC, 910 F.3d at 1238; see ECF No. 10 (“Opp.”) at 3. But they appear to contend that they should be “deemed to have exhausted [their] administrative remedies” under 5 U.S.C. § 552(a)(a)(6)(C)(i). In particular, Plaintiffs appear to argue that they should be treated as having exhausted because they filed suit after the close of business on the twentieth day, that is, that their suit should be treated as having been filed on the twenty-first day. See Opp. at 3. But FOIA's exhaustion provision speaks in terms of “days,” 5 U.S.C. § 552(a)(6)(A)(ii), and Congress has used the term “close of business” when it wishes to so specify, see ECF No. 11 at 2 (collecting examples). Plaintiffs also appear to suggest that they should be deemed to have exhausted because summonses were issued after the twentieth day. See Opp. at 3. But that does not change the fact that Plaintiffs had not satisfied the exception's requirement at the time they filed suit—the relevant time period for the exhaustion inquiry. See, e.g., Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam) (“Exhaustion of administrative remedies is generally required before seeking judicial review ․ (emphasis added)).

But that doesn't end the matter. Plaintiffs argue that the government's issuance of a Glomar response two months after they filed suit makes the exhaustion issue moot. Opp. at 4–5; see also Opp. Ex 1 (letter containing Glomar response). Plaintiffs first point to Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004), in which the Court of Appeals excused a FOIA requester's failure to file an administrative appeal on time after the agency nonetheless “accepted the appeal, processed it, ․ and [then] issued a final decision.” Id. at 677. But Wilbur is inapposite. Unlike here, the requester “did not bypass the administrative review process but pursued it to its end.” Id. Because “he was simply late” in exhausting his remedies, “the policies underlying the exhaustion requirement ha[d] been served” and did not support barring his suit. Id.

Plaintiffs also point to Bayala v. U.S. Department of Homeland Security, 827 F.3d 31 (D.C. Cir. 2016). There, the Court held that an agency's subsequent conduct during litigation—“abandon[ing] its previous determination, mak[ing] a sua sponte disclosure of documents, and craft[ing] a new, five-page-long explanation for this different withholding decision in the district court”—had mooted the issue of whether the agency's initial decision (which the requester had allegedly failed to exhaust) was correct. Id. at 35. The Court explained that there was no reason to require the requester “to administratively exhaust a decision that the agency no longer stands by and that has been overtaken by new and different in-court disclosures and explanations.” Id. at 36. Here, however, the government did not advance a “materially novel and different in-court disclosure decision” as a basis for dismissing Plaintiffs’ suit. Id. at 35. Instead, it raised the basis for its initial withholding decision and Plaintiff's failure to exhaust as defenses in its Answer, see ECF No. 5 at 10, and then moved for judgment on the pleadings on the latter ground. The exhaustion issue remains live.

Finally, Plaintiffs argue that the purposes of exhaustion do not support the dismissal of their suit. Opp. 5–7.¹ But one purpose of exhaustion is to deter requesters from suing prematurely in order to give the agency and requester a chance to resolve or narrow their disputes without burdening federal courts. See Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003); Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990). Although Plaintiffs came close to being “deemed to have exhausted [their] administrative remedies” under 5 U.S.C. § 552(a)(a)(6)(C)(i), their suit is still premature under the plain terms of the statute. As “[e]very premature filing of an action under the [statute] imposes some burden on the judicial system,” “[t]he interest in orderly administration of this body of litigation is best served by adherence to [that] straightforward statutory command.” McNeil v. United States, 508 U.S. 106, 112 (1993).

Accordingly, it is hereby

ORDERED that Defendant's Motion for Judgment on the Pleadings, ECF No. 8, is GRANTED; and it is further

ORDERED that judgment is entered in favor of Defendant against Plaintiff.

This is a final and appealable order.

The Clerk of Court is directed to terminate this case.

FOOTNOTES

1.   Plaintiffs concede that the administrative scheme at issue here supports dismissal. Opp. at 5 (citing Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003)).

CARL J. NICHOLS United States District Judge